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Protection strategy in patent application stage
After the patent application is approved and the enterprise has the patent right, the problem that should be paid more attention to and seriously considered is: how to fully and effectively apply this patent, so that the enterprise can gain an advantage in the competition and realize the industrialization of patented technology. At present, the industrialization of enterprise patent technology usually has the following ways: enterprises implement patent technology by themselves, produce and sell patented products, improve the scientific and technological content of products, and thus improve market competitiveness; Will transfer the patented technology that has little influence on the technological development of the enterprise in order to obtain the patent transfer fee; Sign a patent licensing contract with others; Invest in patented technologies that enterprises are unable to develop on their own, such as joint ventures with others and technology shares. , fully realize the economic benefits of patents.
In the patent application stage, enterprises should pay attention to the following aspects in patent protection:
1. Maintain the validity of the patent right.
Paying the annual patent fee on time and maintaining the validity of the patent right is the premise of patent protection for enterprises. After obtaining the patent right, some enterprises stopped paying fees because of the frustration of patent implementation for a period of time, so that the patent right was terminated by the patent management authority. Later, it was found that other enterprises made patented products and made great profits. This is very regrettable, but it is also irreversible. Therefore, enterprises should carefully consider whether to stop paying fees and give up patents, and should not lose a lot of assets because of a temporary mistake.
2. Sign a legal and effective contract with clear rights and obligations.
In the process of patent transfer, licensing and investment, enterprises should pay attention to the conclusion of contracts, so that on the one hand, contracts can ensure the smooth transfer, licensing or investment, on the other hand, they can safeguard the legitimate rights and interests of enterprises and resolve disputes as soon as possible. Therefore, enterprises should pay special attention to the determination of liability for breach of contract, the conclusion of dispute settlement clauses and the completeness of relevant patent technology clauses, and at the same time pay attention to the operability of contract clauses.
3. Follow-up research on patented technology.
2 1 century is the century of knowledge economy, and the development of science and technology is changing with each passing day. In the process of applying for patented technology, enterprises should also strengthen the follow-up research on patented technology according to the market demand and the continuous improvement of their own technical capabilities, so as to upgrade patented technology and ensure the technical content and competitive advantage of products.
Protection strategy in the stage of patent infringement relief
When the patent right is infringed and the legitimate rights and interests are damaged, it is of great significance for enterprises to take timely measures to effectively stop the infringement and obtain reasonable compensation.
In the stage of patent infringement relief, enterprises should pay attention to the following aspects in patent protection:
1. Identification and discovery of patent infringement.
To stop the infringement of others, we must first learn to identify the infringement. According to the provisions of China's patent law, patent infringement must meet the following two conditions:
(1) Patent infringement must have actual infringement. That is, the infringer manufactures, uses, sells or imports patented products or uses patented methods or uses, sells or imports products directly manufactured according to this method without the permission of the patentee. The newly revised patent law adds the provision of "promising to sell", and the act of promising to sell patented infringing products is also stipulated as patent infringement.
(2) Infringement of patent rights must be illegal. Not all acts that infringe the patentee's patent right without the patentee's consent belong to patent infringement, such as being used for scientific research and experimental purposes, being used by prior owners, using and selling some patented products in good faith, compulsory licensing and planning licensing. According to the patent law, it is not patent infringement.
Only when the above two requirements are met at the same time can the act constitute patent infringement, and the patentee can stop the infringement and demand compensation.
Stop other people's infringement, and then find the infringement in time, which requires enterprises to pay attention to collecting all kinds of market information and market dynamics; At the same time, strengthen the monitoring of market products, especially the products put on the market by peers and competitors. In this way, patent infringement can be found in time, and measures can be taken to stop it, so as to minimize the losses of enterprises.
2. Handling of patent infringement.
According to the provisions of China's patent law and practical experience, enterprises can take the following three solutions after discovering patent infringement:
(1) Both parties reached a settlement. The patentee may first issue a warning letter to the infringer, pointing out the facts of his infringement, so that he can stop the infringement and compensate for the losses. , or through negotiation with the other party, sign the implementation license contract.
(2) apply to the patent administration organ for investigation and handling. The patentee may directly request the patent administrative organ to handle the patent infringement dispute without settling with the other party.
(3) to the people's court. The patentee can also solve patent infringement disputes through litigation and safeguard the legitimate rights and interests of enterprises.